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DFSG Freeness of Patent Reciprocity Clauses

A few licenses have started to show up (some merely proposed licenses)
with patent reciprocity clauses like the following two examples:

[From the Open Software License v 2.0]

    10) Termination for Patent Action. This License shall terminate
        automatically and You may no longer exercise any of the rights
        granted to You by this License as of the date You commence an
        action, including a cross-claim or counterclaim, for patent
        infringement (i) against Licensor with respect to a patent
        applicable to software or (ii) against any entity with respect
        to a patent applicable to the Original Work (but excluding
        combinations of the Original Work with other software or

[From the current revision of the proposed apache license]

    If You institute patent litigation against any entity (including a
    cross-claim or counterclaim in a lawsuit) alleging that the Work
    or a Contribution incorporated within the Work constitutes direct
    or contributory patent infringement, then any patent licenses
    granted to You under this License for that Work shall terminate as
    of the date such litigation is filed.[2]

My personal feeling is that these clauses amount to a useage
restriction, and thus may fail DFSG #5 and #6. I currently see an
acceptable argument being made for the Apache form of the reciprocity
clause (claims restricted to the work itself) to be free[3], but I
don't beleve the OSL form of this clause is, as it is overbroad.

What are others opinions on this?

An interesting correllary, which thankfully hasn't appeared, is the
presence of copyright reciprocity clauses. I would imagine a
reasonable debian policy on reciprocity clauses like the above would
apply equally well to copyright reciprocity as it would to patent

Don Armstrong

1: http://opensource.org/licenses/osl-2.0.php
2: http://apache.org/licenses/proposed/LICENSE-2.0.txt
3: I actually seem to be going back and forth on this particular
issue. I don't like it that much, but the freedom it restricts is not
one that many users of free software have, nor one that a friend of
free software should be utilizing.
Clothes make the man. Naked people have little or no influence on
 -- Mark Twain 


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